November 15, 2011

D.C. Mayor, Councilmembers Contest Order to Give Deposition Testimony

Washington Mayor Vincent Gray (D) and two city councilmembers are opposing a federal magistrate judge's ruling that would order them to give deposition testimony in a wrongful termination lawsuit against the city.

Eric Payne, the city's former contracts chief and an attorney, sued the city in U.S. District Court for the District of Columbia in May 2010, claiming that he was unlawfully fired for attempting to highlight what he believed was the mismanagement of the city's lottery vendor bidding process.

Payne sought to depose Gray, Councilmember Jack Evans (D-Ward 2), Councilmember Jim Graham (D-Ward 1) and the city’s Chief Financial Officer, Natwar Gandhi. Gray moved for a protective order barring his testimony, and Evans and Graham asked the court to quash the subpoenas. All three claimed that they were protected by legislative immunity from testifying about actions they took as councilmembers.

In an Oct. 31
opinion (PDF), U.S. District Magistrate Judge Deborah Robinson denied the city’s request. During a Sept. 23 hearing, attorneys for the city and the councilmembers told Robinson that their clients did have conversations with Gandhi about the city’s lottery contracts – conversations that are the subject of Payne’s subpoenas – but that those interactions were part of their legislative activities because the contract was before the council at the time.

Robinson disagreed, writing that attempts by legislators to “cajole” or “exhort” an executive body aren’t considered protected legislative speech. She found that because Payne wanted to know about those types of conversations between Gandhi and Gray, Evans and Graham, the legislators wouldn’t have immunity against being deposed.

In filings on Monday, counsel for the mayor and the two councilmembers objected to Robinson’s decision and asked for a reconsideration by a U.S. District Court judge. U.S. District Judge Richard Roberts is presiding over the case.

"We ultimately look forward to the District Judge’s review," said V. David Zvenyach, the council's general counsel. "We believe that the magistrate judge's order erred as a matter of law." Zvenyach said that the councilmembers had shown that contract review, including communication with the executive branch, "is part of the legislative sphere."

Payne’s attorney, Washington solo practitioner Donald Temple, defended Robinson's decision. "This is a classic case on the issue of legislative immunity where city officials have gone beyond what I call the legislative sphere in an effort to influence or cajole the contract consideration process," he said.

A spokesman for the city attorney general’s office, which is representing the city and Gray individually, declined to comment.